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Constitutionalism in Africa Follows Rocky Road

March 28, 2012 8:00 PM

Nico Colombant

Lieutenant Amadou Konare, centre, spokesman for coup leader Amadou Haya Sanogo, unseen, is surrounded by security as he arrives to address supporters, as thousands rallied in a show of support for the recent military coup, in Bamako, Mali, March 28, 2012.

While constitutions in Africa are routinely changed, completely revised or abruptly shut down, like recently in Mali, scholars agree the continent's constitutional path has been a rocky one. They recommend more public involvement so constitutions can have more lasting power.

Constitution reform

When Lieutenant Amadou Konare announced a recent coup in Mali, he also indicated the country's constitution would be suspended indefinitely.

Two years ago elsewhere in Africa, the occasion was more festive, as a military parade marked Kenya's promulgation of a new constitution.

Changes in the wake of post-election violence included more parliamentary oversight of presidential decisions and a new citizen's bill of rights.

Going back further into the continent’s history, constitutions and broad legal frameworks often times existed during the colonial era, and were then quickly updated right before independence. Recommendation: Involve the public

Ian Shapiro, a professor of political science at Yale University and a South African native says there was very little public involvement, leading to weak documents.

“A good part of the reason all of these countries turned into dictatorships in the 1960s when the European powers left was that they simply created democratic institutions on the way out that did not have any kind of support or buy-in from the populations, and so most of them did not last very long,” he said.

Shapiro was an adviser during the shaping of South Africa's post-apartheid constitution, which has been praised for being crafted slowly as well as with public input. The document came into effect in 1997, four years after an interim constitution had been passed, and six years after negotiations began.

In many African countries, new constitutions have often been worked on in sometimes chaotic and rushed conditions after a civil war, a coup or to quickly get out of a political impasse.

Timothy Longman, the director of the African Studies Center at Boston University, says the process needs to take place when conditions are right.

“If you are going to write a democratic constitution in a context in which your country is not yet really democratic, it is inevitably going to reflect that lack of democracy,” he stated.

Longman also stresses public participation. Too often, he says, this crucial component is not taken seriously.

“These [Constitutions] are imposed from above, and even though there may appear to be some consultative process, they don't really reflect what the people think or what the people want," Longman said. "The Rwandan constitution, which was put into place almost a decade after the (1994) genocide, was one where they had a whole committee that was representative, and they went into the countryside and supposedly talked to the people. But in reality, the political situation was so constrained that people did not really feel free to say what they wanted."

Curb corruption, implement law

G. Pascal Zachary, a professor at Arizona State University who writes the Africa Works blog, says too often politicians use the opportunity of constitutional reform as a diversion from a country's real problems, such as curbing corruption.

He cites Kenya as an example where constitutional change was what he calls an 'escapist fantasy.'

“The problems of governance in Kenya, and the level of hypocrisy and official corruption are so enormous that in lieu of a legitimate mass movement to overthrow the political and economic elites in Kenya, which is not about to happen, constitutional reform at least gives the majority of people who are deeply aggrieved something to talk about,” Zachary stated.

While European powers colonized Africa, African countries have subsequently adopted constitutions much more in line with the U.S. constitutional model.

J. Peter Pham, the Africa director at the Washington-based Atlantic Council, says, unlike the U.S. constitution, he feels African constitutions have been changed too much.

“People should come to expect a certain continuity. There is value [there] as many countries have learned, the United States, for example, which has had a constitution amended slightly but still essentially the same constitution as 1787," he said. "So there is something to be said about long lasting constitutions and continuity.”

The scholars also agree that much more important than the path to constitutionalism is the path to actually implementing the rule of law. To make this happen, they say parliaments across Africa need to be strengthened, citizens must be given access to lawyers, the quality of policing has to improve and judiciaries need to strive for independence.